Canadian Pacific Ry. Co. v. Anderson

Canadian Pacific Ry. Co. v. Anderson
Collection
Supreme Court Judgments
Date
1936-04-21
Report
[1936] SCR 200
Judges
Duff, Lyman Poore; Rinfret, Thibaudeau; Crocket, Oswald Smith; Davis, Henry Hague; Kerwin, Patrick
On appeal from
Manitoba
Subjects
Transportation
Decision Content
Supreme Court of Canada
Canadian Pacific Ry. Co. v. Anderson, [1936] S.C.R. 200
Date: 1936-04-21
Canadian Pacific Railway Company (Defendant) Appellant;
and
Torgil Anders Anderson, an infant suing by his next friend, Astrid Olivia Anderson, and Astrid Olivia Anderson (Plaintiffs) Respondents.
1936: February 13, 14; 1936: April 21.
Present: Duff C.J. and Rinfret, Crocket, Davis and Kerwin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Railways—Negligence—Highways—Railway track’ on public street—Children playing in vicinity—Track used for assembling of freight train—Child climbing on car of assembled train just before train hauled away, falling through jerk of starting train and injured—Liability of railway company.
Defendant railway company had a track on the north side of H. street in the city of Winnipeg, on which it would assemble a freight train by moving easterly successive “cuts” of cars to be added to those already assembled. When the assembling was completed an engine was attached and the train was hauled westerly to connecting tracks within defendant’s yards. Children played in the vicinity. One evening, after a long train had been assembled, and the hauling crew had taken charge, and were about to start the train, the plaintiff, a boy aged 4½ years, ran across the street, unnoticed by the trainmen, climbed the end side ladder of a car, crossed to the rear ladder, and fell at the jerk of the starting train and was injured by the moving train. Defendant was sued for damages.
Held (Crocket J. dissenting): Defendant was not liable. (Judgment of the Court of Appeal for Manitoba, 43 Man. R. 345, reversed).
Per Duff C.J. and Rinfret J.: Plaintiff was a trespasser on the train and on that ground alone was precluded from maintaining a right of action for negligence. The case is governed by Grand Trunk Ry. Co. v. Barnett, [1911] A.C. 361. (Lygo v. Newbold, 9 Ex. 302, Hughes v. Macfie, 2 H. & C. 744, and Addie v. Dumbreck, [1929] A.C. 358, also cited). Further, no breach of duty by defendant had been established. Towards people using the public street defendant was bound to exercise reasonable care. Engaged in the execution of statutory powers, it was bound to take reasonable care not to cause unnecessary harm to those who might be injured by a careless or unreasonable exercise of its rights. But it was under no obligation to intending trespassers, children or adults, to prevent them effectuating a trespass upon its cars. Its duty towards such a trespasser was limited to refraining from intentionally injuring him or “not to do a wilful act in disregard of ordinary humanity towards him”; “not to act with reckless disregard of the presence of the trespasser.” On the evidence it was clear that defendant did not permit children to climb on the cars and tried to prevent them; it was not in the position of a tacit licensor. There was here no nuisance; the action rested upon negligence; (the distinction, and its importance, discussed, and Lynch v. Nurdin, 1 Q.B. 29, Liddle v. Yorkshire, [1934] 2 K.B. 101, Cooke v. Midland, [1908] 2 Ir. R. 242, [1909] A.C. 229, Latham v. Johnson [1913] 1 K.B. 398, discussed). The present case has no analogy to Lynch v. Nurdin, 1 Q.B. 29, Glascow Corporation v. Taylor, [1922] 1 A.C. 44, Excelsior Wire Rope Co. v. Callan, [1930] A.C. 404, or Cooke v. Midland, [1909] A.C. 229. A person who is using his vehicle in the usual way, having committed no wrong, and though the vehicle may be attractive to children, is guilty of neither negligence nor nuisance, and is not responsible for injury to children caused by their trespassing thereon.
Per Davis J.: The case cannot be treated in law as one of nuisance, and falls to be determined upon the question of negligence. That distinction is fundamental. The presence and movement of cars on the street was the inevitable result of the ordinary exercise of defendant’s public authority. It was not shewn that plaintiff was on the car with leave or licence of defendant. He was a trespasser on the car. It was clear upon the evidence that no employee of defendant saw him approaching the car or upon it. It could not be fairly said upon the evidence that defendant’s conduct toward him was such wilful or reckless disregard of his presence as to amount to malicious conduct toward him. To hold defendant liable would make it virtually an insurer of a trespasser. (Grand Trunk Ry. Co. v. Barnett, [1911] A.C. 361, Addie v. Dumbreck, [1929] A.C. 358, and Liddle v. Yorkshire, [1934] 2 K.B. 101, cited. Lynch v. Nurdin, 1 Q.B. 29, Cooke v. Midland, [1909] A.C. 229, Excelsior Wire Rope Co. v. Callan, [1930] A.C. 404, and other cases, discussed).
Per Kerwin J.: Defendant’s railway track was legally on the street, and its employees were lawfully engaged in moving the cars. Defendant owed no duty to plaintiff which it failed to fulfil. Plaintiff’s act in running out and getting on the car when none of defendant’s employees happened to be looking, was something against which defendant could not guard, and which, in law, it was not incumbent upon it to foresee. (Donovan v. Union Cartage Co., [1933] 2 K.B. 71, Liddle v. Yorkshire, [1934] 2 K.B. 101, and other cases, referred to).
Per Crocket J. (dissenting): Defendant, in the exercise of its right to assemble cars and move trains on its track along the street, was bound to take such precautions for avoidance of injury to the public as were fairly commensurate with the danger created by said operations. Its degree of care and vigilance owed to the public depended on existing conditions and risks, as they were known or ought to have been known to defendant or its servants in charge. At the particular point where the accident happened there was a special danger from the presence of children in play in close proximity, and upon the evidence defendant through its servants and agents must be charged with knowledge thereof. The standing cars were an attraction to younger children, and this should have been known to defendant’s servants; and defendant did not take reasonably adequate precautions to guard against the obvious danger of such a thing as happened. It should have kept one or two watchmen to patrol the dangerous sections, specially charged with looking out for children, from the time the hauling crew took over the train until it was moved off the street. In the circumstances defendant could not avail itself of the fact that plaintiff was a trespasser on the car; he was no more so than were the infant plaintiffs in Lynch v. Nurdin, 1 Q.B. 29, and Excelsior Wire Rope Co. v. Callan, [1930] A.C. 404.
APPEAL by the defendant railway company from the judgment of the Court of Appeal for Manitoba[1] allowing (Dennistoun and Trueman JJ.A. dissenting) the plaintiffs’ appeal from the judgment of Adamson J.[2] dismissing the action. The Court of Appeal set aside the judgment of Adamson J. and gave judgment for the infant plaintiff for $5,000 and for the adult plaintiff (the mother of the infant plaintiff) for $800. The action was brought to recover damages by reason of injury to the infant plaintiff caused when, having climbed on a ear of defendant’s freight train which had been assembled on defendant’s track on Higgins Avenue in the city of Winnipeg, he was jerked off by the starting train and run over. The material facts of the case are sufficiently stated in the judgments now reported. The defendant’s appeal to this Court was, as against the infant plaintiff, allowed, and the judgment of the trial judge restored, Crocket J. dissenting. The appeal as against the adult plaintiff was dismissed for want of jurisdiction, no order granting special leave to appeal having been obtained.
W. N. Tilley K.C. and L. J. Reycraft K.C. for the appellant.
J. T. Thorson K.C. for the respondents.
The judgment of Duff C.J. and Rinfret J. was delivered by
Duff C.J.—The infant respondent, it would appear, was a trespasser on the appellant’s train, and on that ground alone would seem to be precluded from maintaining a right of action for negligence. The case is governed by Barnett’s case[3]. No pertinent distinction can, I think, be drawn between a train which is momentarily upon a part of the railway that traverses a public street and a train which, at the time of the injury, is on a part of the company’s line where the title to and possession of the soil are vested in the railway company. Indeed, in Lygo v. Newbold[4], a person who was riding in the defendant’s wagon on a public road in such circumstances as to constitute him a trespasser was held to be precluded by virtue of that fact from recovering damages from the owner for injuries resulting from the negligence of the owner’s servant who was driving the wagon. This case is cited with approval in the judgment of the Privy Council in Barnett’s case3. The principle of Lygo v. Newbold4 was applied in Hughes v. Macfie[5]. The judgments of Lord Hailsham and Lord Dunedin in Addie v. Dumbreck[6] establish that for this purpose no distinction can be drawn between adults and infants.
Lynch v. Nurdin[7] is said to establish such a distinction. It is convenient to discuss that case later.
But the respondent also fails because no breach of duty by the appellants has been established. Towards people using the public street the appellants are bound to exercise reasonable care. They are engaged in the execution of statutory powers and are, therefore, under an obligation to take reasonable care not to cause unnecessary harm to those who may be injured by a careless or unreasonable exercise of their rights. But they are under no obligation to intending trespassers to prevent them effectuating a trespass upon their cars, which are a part of the railway; whether they be children or adults. If they permit children to climb upon their cars they may find themselves in the position of tacit licensors and, in consequence, affected by duties towards them as licensees; but nobody suggests (such a suggestion is negatived by the evidence) that the respondent was a licensee.
The duty of the appellants towards a trespasser on one of their trains, as explained in Barnett’s case[8], is limited to refraining from intentionally injuring him, or what is virtually the same thing, “not to do a wilful act in disregard of ordinary humanity towards him.” The distinction between cases of nuisance and cases of negligence where the plaintiff is a trespasser is illustrated in Liddle v. Yorkshire[9].
Three lines of argument founded upon three separate decisions are presented in support of the judgment. Before dealing with these decisions, two observations would appear to be pertinent. First, as a general rule, it is not a legitimate use of a judgment to separate particular expressions from their context and, without regard to the point at issue or the facts of the case, to treat those expressions as governing the decision in other cases. Second, we must be careful, as Farwell L.J. said in Latham v. Johnson[10],
not to allow our sympathy with the infant plaintiff to affect our judgment: sentiment is a dangerous will-of-the-wisp to take as a guide in the search for legal principles.
The first of these decisions is Lynch v. Nurdin[11]. There has been some difference of opinion upon the question whether the ground of liability in Lynch v. Nurdin11 was nuisance or negligence. Notwithstanding the observations of Lord Macnaghten in Cooke v. Midland[12], I can not escape the conclusion that the view expressed by Lord Sumner (then Hamilton L.J.) in Latham v. Johnson[13], by Farwell L.J. in the same case, and by Greer L.J. in Liddle v. Yorkshire9, correctly gives the effect of that case. Lord Sumner says:
It is necessary to distinguish all these cases which turn upon negligence from those which turn on nuisance upon or adjoining a highway. Such cases, so far as they relate to children, may in that particular be to some extent in point, but the differences between cases of nuisance and cases of negligence must never be lost sight of. The cases of Lynch v. Nurdin11; Jewson v. Gatti[14]; Harrold v. Watney[15], and Barker v. Herbert[16] are all of this class (see especially per Vaughan Williams L.J. in the last cited case at pp. 637 and 638).
With this view Farwell L.J. agreed, at page 403. He said:
No question therefore arises of the duty not to do anything that maybe a nuisance close to or upon a highway, such as arose in Jewson v. Gatti14, Harrold v. Watney15, or in Lynch v. Nurdin11, which, with all respect to Lord Macnaghten’s contrary opinion in Cooke v. Midland Great Western Railway of Ireland[17], was clearly a case of nuisance. The horse and cart left unattended in the highway, to use the language of Vaughan Williams L.J.[18], “constituted a danger to those using the highway—that is, it constituted a nuisance.”
Greer L.J. in Liddle v. Yorkshire[19] approved the pronouncements of these eminent judges. He said:
That was a case of nuisance, and the question involved in the case was whether the damage to the infant plaintiff could rightly be said to have been caused by the wrongful act of the defendant. As the act of the infant plaintiff in getting into the cart and the act of the other child who set it in motion were acts which any one would expect to follow as a probable result of the defendants’ wrongful act, the defendants were held liable. The story began with a wrongful act by the defendant. Here there was no wrongful act by the defendants unless it be a wrongful act not to prevent children from trespassing. We have the high authority of Lord Sumner, then Hamilton L.J., in Latham v. Johnson[20] for this explanation of Lynch v. Nurdin[21]. * * *
The discussion in the judgments in Liddle v. Yorkshire[22] illustrates the importance of the distinction between actions founded on negligence and actions founded on nuisance as regards the fact of the plaintiff being a trespasser.
Then, in Cooke v. Midland[23], the Lord Chancellor of Ireland explains Lynch v. Nurdin21 as a case of nuisance. So also does Holmes L.J. at p. 284. FitzGibbon L.J. does not use the term nuisance but employs these words:
Lynch v. Nurdin21 was the case of injury on a public highway, where a man left his horse and cart unattended in the street, and a probable danger resulted in actual injury.
The question of causal relation between the wrongful act of leaving the horse and cart unattended in a public highway and the injury to the plaintiff was, of course, a question of importance in Lynch v. Nurdin21. I am inclined to think that it is to this matter of causal relation that the observation usually quoted from Lord Denman’s judgment is addressed. Lord Denman said:
For if I am guilty of negligence in leaving any thing dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first[24].
This sentence taken by itself would require considerable qualification, but the succeeding sentence shews what was in the mind of the Lord Chief Justice. He said: If, for example, a gamekeeper, returning from his daily exercise, should rear his loaded gun against a wall in the playground of school boys whom he knew to be in the habit of pointing toys in the shape of guns at one another, and one of these should playfully fire it off at a school-fellow and maim him, I think it will not be doubted that the gamekeeper must answer in damages to the wounded party.
The true doctrine as regards causal relation is stated with accuracy, if I may say so, by Hamilton L.J., in his judgment in Latham v. Johnson (supra, at p. 413), in these words:
Children acting in the wantonness of infancy and adults acting on the impulse of personal peril may be and often are only links in a chain of causation extending from such initial negligence to the subsequent injury. No doubt each intervener is a causa sine qua non, but unless the intervention is a fresh, independent cause, the person guilty of the original negligence will still be the effective cause, if he ought reasonably to have anticipated such interventions and to have foreseen that if they occurred the result would be that his negligence would lead to mischief. Such cases are collected and elaborately discussed in Sullivan v. Creed[25]. The following are instances: Dixon v. Bell[26]; Illidge v. Goodwin[27]; Lynch v. Nurdin[28]; Clark v. Chambers[29]; Englehard v. Farrant & Co.[30]; McDowall v. Great Western Railway[31]; Williams v. Eady[32].
The sentence in the judgment in Lynch v. Nurdin[33] following the passage I have quoted above seems to support the conclusion that nuisance was within the contemplation of that judgment. Lord Denman says,
This might possibly be assumed as clear in principle; but there is also the authority of the present Chief Justice of the Common Pleas in its support; Illidge v. Goodwin 27.
The decision of Tindal C.J. to which the Lord Chief Justice refers is expressed in these words:
* * * If a man chooses to leave a cart standing in the street, he must take the risk of any mischief that may be done;[34].
which seems clearly enough to point to nuisance.
In this view, Lynch v. Nurdin28 could have no application to the present case. There was here no nuisance; the action rests upon negligence and the appellants owed no duty to a trespasser beyond that stated above.
Then, one asks oneself whether there is any analogy between a railway train, to which an engine is attached, guarded by its train crew, and a horse and cart left wholly unguarded in a public street. The horse and cart was not only likely to attract children, it was calculated to entice them to interfere with it, to set it in motion. The only way a child can interfere with a railway train is by attempting to get on it. In the judgment already referred to, Hamilton L.J. considers the elements of attractiveness and of danger as envisaged by the general rule,
that a person who, in neglect of ordinary care, places or leaves his property in a condition which may be dangerous to another may be answerable for the resulting injury, even though but for the intervening act of a third person or of the plaintiff himself (Bird v. Holbrook[35]; Lynch v. Nurdin[36]), that injury would not have occurred.
At p. 419, he says:
One asks what kind of chattel it is in respect of which its owner owes a duty of care towards strangers, equally whether it is in a public place or on his own premises, and equally whether the strangers are invited or only licensed. There is only one answer: the chattel must be something highly dangerous in itself, inherently or from the state in which its owner suffers it to be. Danger is relative. What property must the chattel possess to make the consideration of its attractiveness to children relevant? It must be something which, from its nature or state, will draw children to it and induce them heedlessly to put it into operation.
I cannot in any intelligible way apply this language to the appellant’s train. Hamilton L.J. is speaking of property which, in neglect of ordinary care, is placed or left in a “condition which may be dangerous to another”; and is something which, by reason of being left unguarded, will not only attract children to it, but will induce them heedlessly to put it into operation or tamper or play with it.
Hamilton L.J., at page 415 in the same judgment, discusses the phrases “trap,” “attraction” and “allurement.” A trap, he says,
involves the idea of concealment and surprise of an appearance of safety under circumstances cloaking a reality of danger.
Lynch v. Nurdin36 has never been applied, so far as I am aware, to a vehicle actually in use and guarded in the normal way. It is well known that all boys experience the pressure of the invitation to climb on the back of a vehicle in order to get a ride. It has never been held, so far as I know, that a farmer driving hay to market must have somebody on top of the load to keep an eye on boys who may, and almost certainly will, indulge their propensities by getting on the back of the vehicle. In Lygo v. Newbold[37] Alderson B. appears to have rejected the idea that liability could arise in such circumstances if the child were injured through negligent driving. Indeed, he puts this possibility as a reductio ad absurdum.
So long as a person is actually using his vehicle in the ordinary and accustomed way, he is, it would appear, entitled to the enjoyment of it without the curtailment of his rights by trespasses or encoachments of anyone. The fact that the vehicle may present an irresistible allurement to children in the street can make no difference. There is neither negligence nor nuisance in making use in the ordinary way of a vehicle presenting attractions of such a character to infants. If, unfortunately, children of an age too tender to possess the capacity to take care of themselves put themselves in a position of danger by getting into it without the consent of the persons in charge of the vehicle, and without their knowledge, then there arises just one of those risks to which such children, when left unguarded, will unhappily be subject. The person who is making use of a vehicle he employs in the usual way, having committed no wrong, is not chargeable with responsibility for them.
It was considered in the Court of Appeal that Glasgow Corporation v. Taylor[38] governs this case. There, a shrub with poisonous berries was growing in the Botanical Gardens in Glasgow; and a child ate some of the berries and died in consequence. The Corporation was held responsible.
The question was raised by way of demurrer. Lord Buckmaster, in his judgment at pp. 49-50, sums up thus the averments in the pursuer’s condescendence:
On a small piece of fenced ground in the gardens the appellants grew, among other botanical specimens, a shrub known as Atropa Belladonna, whose berries present a very alluring and tempting appearance to children. Notwithstanding the fence the piece of ground on which this shrub grew was open to the public. There was no isolation of the shrub nor warning that could be seen of its dangerous character. The spot where it grew was frequented by children, and according to the pursuer’s allegations the circumstances were such that the defenders knew that it was probable, and indeed practically certain, that children would be tempted and deceived by the appearance of the shrub and would eat the berries. The knowledge that these berries were poisonous was also said to be possessed by the defenders. The pursuer’s child, a little boy of seven, ate some of these berries and, in consequence, died.
All the judgments proceeded upon the circumstance that, according to the allegations, within reach of the children who, in pursuance of undoubted legal right habitually frequented the place, there had been put something which they were tempted to eat, while to eat was the certain prelude to sickness, and the probable precursor of death; as well as the facts that, though this danger was well known to the Corporation, no warning was given to parents or those having the custody of the children, and that these had no knowledge of the danger. The allegation that the defenders knew it was probable, and, indeed, practically certain, that the children would be tempted and deceived by the appearance of the shrub and would eat the berries would seem to put the matter beyond all question, and that is the basis of the decision. Lord Shaw says (at p. 62):
I do not find myself able to draw a distinction in law between natural objects such as shrubs whose attractive fruitage may be injuriously or fatally poisonous, and artificial objects such as machines left in a public place unattended and liable to produce danger if tampered with.
The case plainly falls within the general rule stated in the judgment of Hamilton L.J., as quoted above (of which Bird v. Holbrook[39], is given as an instance), and all the elements mentioned in that judgment as constituting danger, attraction and trap were present. It is important to observe that the Lords who took part in Taylor’s case[40] unanimously stated, either in explicit words or impliedly, that the decision has nothing whatever to do with cases where the peril is not concealed. Lord Buckmaster emphasizes “the element of mistake and deception” (p. 51). At page 53, Lord Atkinson says:
The defenders were, therefore, aware of the existence of a concealed or disguised danger to which the child might be exposed when he frequented their park, a danger of which he was entirely ignorant, and could not by himself reasonably discover, yet they did nothing to protect him from that danger or even inform him of its existence.
Lord Shaw says, at pages 60 and 61:
In grounds open to the public as of right, the duty resting upon the proprietors, or statutory guardians like a municipality, of making them reasonably safe does not include an obligation of protection against dangers which are themselves obvious. Dangers, however, which are not seen and obvious should be made the subject either of effectively restricted access or of such express and actual warning of prohibition as reaches the mind of the persons prohibited. And again,
Where the dangers are not familiar and obvious, and where in particular they are or ought to be known to the municipality or owner, special considerations arise. In the case of objects, whether artificial, and so to speak, dangerous in themselves, such as loaded guns or explosives, or natural objects, such as trees bearing poisonous fruits which are attractive in appearance, it cannot be considered a reasonably safe procedure for a municipality or owner to permit the exhibition of these things with their dangerous possibilities in a place of recreation and without any special and particular watch and warning.
He adds:
When the danger is familiar and obvious, no special responsibility attaches to the municipality or owner in respect of an accident having occurred to children of tender years. The reason of that appears to me to be this, that the municipality or owner is entitled to take into account that reasonable parents will not permit their children to be sent into the midst of familiar and obvious dangers except under protection or guardianship. The parent or guardian of the child must act reasonably; the municipality or guardian of the park must act reasonably. This duty rests upon both and each; but each is entitled to assume it of the other.
Furthermore, the analogy of the case to that of an unguarded machine left in a place frequented by children and possessing, by reason of its unguarded state and other circumstances, all the elements of allurement and trap, as explained by Hamilton L.J., seems to exclude its application to the facts now under examination. If it be said that the child in plucking the berries was guilty of trespass, then the answer is that the averments, as summarized by Lord Buckmaster, would seem to bring the defenders within the rule that the land owner is under a duty even towards a trespasser “not to do a wilful act in disregard of ordinary humanity towards him.”
I now come to Excelsior Wire Rope Co. v. Callan[41]. Before considering the application of that case to the facts before us, it will be convenient to state those facts with some particularity.
In Winnipeg, a street named Higgins street runs along the southern boundary of part of the freight yards of the appellants. The street is 66 feet wide and in the northerly strip of 14 feet there runs a railway track, part of the appellants’ railway, and, admittedly, lawfully there for the railway purposes of the appellants. This track connects at its westerly end with other tracks within the freight yards and extends between 2,500 and 3,000 feet along Higgins street, and is known as the “K” lead. There are freight sheds in the freight yards along the northern boundary of Higgins street.
It is a practice of the appellants every day in the evening to assemble a drag or train of freight cars on “K” lead. That is done by a group of men known as the shed crew who bring, first, a “cut” of cars, as the phrase is, to the west end of the lead and then, moving from the west, to add successive cuts until the whole drag is assembled. The drag in the present case included 55 cars and was something over 2,000 feet long. As each successive cut is added, the cars of the preceding cuts are necessarily pushed easterly along the lead. The car at the east end is known as the “point” car.
For the safety of people using the street, the appellants employed a man, Messier, whose primary duty it was to protect the “point,” in the language of the witnesses, which means that it was his duty to see that the car at the eastern end did not come into contact with any obstruction in the street and that people using the street should be warned of its approach. It was also his duty to protect the cars against intruders and, as children played on the street in the immediate vicinity and had a playground on the corner of Higgins street and another street, Ellen, entering Higgins street from the south, it was his business to see that children were kept away from the cars. His duty came to an end when the drag was assembled, as the learned trial judge has found, and, no doubt, rightly found. When the drag is assembled, also, the duties of the shed crew come to an end. It is then taken over by a hauling crew. An engine is attached and it is moved away into yards on the west.
Unfortunately, the respondent, who was only four and a half years of age at the time, had climbed the iron ladder which, as usual, was attached to the side of one of the cars in the drag and at its end, and had succeeded in crossing to the ladder attached to the rear of the car adjacent to that attached to the side, just before the hauling crew, pursuant to their duty, started the train on its westerly movement; and, when the train started, he fell from his place on the ladder to the track below and had his leg severed from his body by one of the moving wheels.
The procedure in starting the train seems to be something like this: The engine is started on a movement towards the west, and then, if the driver is apprized, by signal originating with the trainman stationed near the easterly end of the train, that all the couplings are working, he proceeds with hauling the train west. The boy’s fall seems to have been occasioned either by the first jerk or by that combined with the movement of the train an instant later.
The hauling crew consisted of the locomotive driver and fireman (with whom we are not concerned), the train foreman Wilkinson, two trainmen, Boardman and Smith. There was also a railway constable, Crick.
Wilkinson gave this account of his movements. He said that he and his two trainmen, Boardman and Smith, came to the west end of the drag before the assembling of the drag was quite complete; that he and Boardman walked to the east end of the train, then turned and walked west again. He left Boardman at a place about twelve or fifteen cars west of the east end, and proceeded to the west end of the drag where the other trainman, Smith, was stationed. It was Boardman’s duty to see that, on the initiation of the movement of the train, the cars were all “pulling,” and, if so, to signal to Wilkinson at the west end of the train. Boardman gave the signal from a position approximately fifteen cars west of the east end of the train, and the train moved on. Boardman, still looking towards the west end of the train, climbed on top of the train, as did Wilkinson and Smith.
Crick, the constable, says that it was his duty to check the seals on the cars and at the same time to keep watch to see that there was nobody around the train. He started at the east end of the train and walked along the northern side examining the seals and then again walked from the west end to the east end. Neither Wilkinson, nor Board-man, nor Crick saw any children near the train, although there were children playing on the southern side of Higgins street. At the time the respondent climbed the ladder, Boardman apparently was between 150 and 200 feet to the west of him with his face turned to the west. Crick, apparently, was at the car at the east end with his face turned towards the east. As to the actions of the respondent, there seems to be little doubt. The learned trial judge has accepted the story of a boy, Voss, who was eleven years of age at the time of the accident. Voss was lying on the east side of Ellen street about, as the learned judge says, 150 feet from the train. He saw the respondent rush past him, run to the car, climb the ladder just before the train started. The learned trial judge says this must have occurred just as Boardman was giving the signal. It was either just as he gave the signal or just before, when Boardman’s face, as the learned judge says, was turned to the west. The boy’s statement, as the learned trial judge interpreted it, virtually coincides with this. The learned trial judge, referring to the boy’s movements and to the fact that he escaped the attention of the train men, says it “would all happen in a few seconds.”
Mr. Thorson, who presented a very able argument on behalf of the respondent, contended most earnestly that there was evidence from which it ought to be concluded that this child had been playing near the train just before he started to climb the ladder. That view cannot be reconciled with the account given by Voss (who was a witness for the plaintiff, and whose account of what occurred was put forward by the plaintiff in Voss’s evidence in chief), which, as I have said, was accepted by the learned trial judge.
Another boy named Hobson, who was riding about on his bicycle, gives some evidence upon which Mr. Thorson relied. Unfortunately, the effect of Hobson’s evidence is rather obscure. He said in examination in chief that he had seen the little boy playing “around the cars.” In cross-examination he said he saw him playing where the tracks switch off into the platform. This platform is on the south side of Higgins street where a spur from “K” lead crosses that street. He says the boy was not playing on the platform but near there, and he adds that he was not in Ellen street at all.
Now, Hobson’s story as to his own movements is this. He saw the little boy, as he says, playing near the platform, which is about sixty or seventy feet from Ellen street. Just then he turned his bicycle west and rode on down Ellen street, not quite as far as Henry street which is distant from Higgins street about 180 feet, then he turned around and proceded towards Higgins street, and, when he was about half way between Henry and Higgins, he noticed the boy “hanging on to” the ladder on the end of the car. It is quite evident that Hobson’s story cannot be reconciled with that of Voss. According to Hobson, the boy was never on Ellen street. And it is quite clear that, accepting Hobson’s account of his own movements, a very short time indeed must have elapsed between the time he left the respondent playing near the platform on Higgins street and the time he saw him hanging from the ladder. It is difficult to suppose that a boy of that age could, within that short space of time, have got over to the place at which he passed Voss running towards the train, climbed the ladder on the side of the car and passed over to the ladder on the rear of the car.
If the learned trial judge was right in the view he took, accepting Voss’s account that the child dashed from the lower part of Ellen street not far from Henry to the train, mounted the ladder and was knocked off by the jerk of the train in starting, all in a “few seconds,” as the trial judge finds, that this occurred when Crick’s face was turned towards the easternmost car, and when Boardman’s face was turned in the opposite direction, it would seem to have been the merest accident indeed that this little lad in his rapid dash escaped the observation of both the trainman and the constable.
The contention on behalf of the respondent is that Messier should have been kept on duty until the train was hauled out. I have already pointed out that there is no rule of law by which the appellants owe a duty to adults or to children to prevent them trespassing on their cars. If they permit such trespasses, then they may incur the obligations of licensees, but the evidence is clear and uncontradicted that everything that could reasonably be done was done to keep children away from the cars while the drag was being assembled. Messier’s primary duty was to warn people using the street of the approach of the train. Very naturally and properly, he was required to keep children away from the cars; occasionally a child would attempt to get on a car and would have to be driven away. Apart altogether from humanitarian considerations, the railway company probably understood the risk from the legal point of view of permitting the children to trespass. I see no reason to reject the view of the trial judge that, after the drag was assembled and while the train was stationary under the care of the hauling crew, they had no reasonable ground to suppose that, in the presence of the hauling crew passing up and down the south side of the train, as has been explained, and of the constable, any child attempting to get on the train would escape observation; there is no suggestion in the evidence of any other child having attempted to do so on the same or any other occasion after the hauling crew came on duty.
In this connection it should be observed that the evidence all points to the conclusion that the danger of approaching the train when the engine was attached was quite well understood even by children. The little boy says, and what he says has in it the probability of truth, that two boys who were with him when he approached the train refused to climb with him on the car and he adds (where he got the information does not appear) that they saw the engine and he did not.
I come now to the Excelsior Wire Rope case[42]. The facts in their general features are important. The appellants there had a siding on some land which was the property of the Marquis of Bute, and, as a haulage apparatus, they had on the same property a post and sheave to which wires and ropes were attached and which was worked by a dynamo. Children used the vicinity of this post and sheave as a playground. They played uninterruptedly, not only in the vicinity, but with the machine and ropes and other things attached to it, except on the occasions, a few times a week, when the machine was just to be put into operation; and then it was the duty and the practice of the employees working the machine to see that the children were not in danger. Except on these occasions, they were permitted to play with the machine.
The case was tried by Shearman J. who
held that the appellants were liable on the ground that the appellants had acquiesced in children frequenting the siding, so as to constitute the children licensees, and that the setting in motion of the haulage apparatus constituted a trap * * * (p. 405).
There was an appeal to the Court of Appeal.
The Lords Justices proceeded on the assumption that the children were trespassers, and held that their injuries were caused by an act done by the appellants’ servants with reckless disregard of the presence of children whom they had every reason to think might be injured. (pp 405-406). The pertinent facts are stated by Lord Buckmaster